Jurisprudence on maritime conventions a cmi project to which your assistance is required



Download 1.09 Mb.
Page3/19
Date18.10.2016
Size1.09 Mb.
#1533
1   2   3   4   5   6   7   8   9   ...   19

United States
In Re M/V DG Harmony, United States Court of Appeals – Second Circuit, 3 March 2008*
The M/V DG Harmony, owned by Navigator Shipping Ltd. and chartered to several charterers, in her voyage from New York to South America in October 1998 loaded at Newport News, Virginia ten containers each of which contained approximately 16,000 kilograms of calcium hypochlorite (hydrated) (calhypo). The shipper of the container was PPG Industries Inc. When the vessel was off the northern coast of  Brazil an explosion ripped through the third hold, where the calhypo was stowed, and all efforts of the  crew to fight against the fire that developed after the explosion were of no avail. The fire resulted in a constructive total loss of the vessel. The owners of the vessel and of other cargo on board as well as of the insurers brought proceedings against PPG in the United States District Court for the Southern District of New York holding them strictly liable under § 4(6) of the Carriage of Goods.  The order of the District Court finding PPG strictly liable was appealed by PPG.
Held, by the U.S. Court of Appeals-II Circuit, that:
[1] Shippers cannot be held strictly liable in respect of loss or damage caused by the dangerous nature of their cargo if the carrier was generally aware of such dangerous nature, even though he may not have been aware of its precise characteristics. In such circumstances, however, the shipper may be .liable on account of his negligent failure to warn the carrier about the dangers inherent in the cargo, provided the carrier demonstrates (a) that the shipper failed to warn him about dangers inherent in the cargo of which the stevedore and ship’s master could not reasonably have been expected to be aware; and (b) that an absent warning, if given, would have impacted stowage.
* By the courtesy of David Martin Clark (www.onlinedmc.co.uk)
Contship Containerlines, Ltd. v PPG Industries, Inc. - The "Contship France", United States Court of Appeals for the Second Circuit 21 March 2006 (not yet reported)
PPG Industries, Inc. shipped 512 drums of Cal Hypo aboard the Contship France, operated by Contship Containerlines, Inc. which sailed from Charleston, South Carolina in late September 1997. Upon the ship's arrival in Tahiti, a fire broke out. The source of the fire was one batch of Cal Hypo, consisting of 80 drums each weighing 425 pounds. The particular type of Cal Hypo at issue, designated "UN 2880" by Department of Transportation regulations, is known to be flammable. When exposed to heat at or above its "critical temperature," Cal Hypo will generate heat from decomposition faster than the heat can dissipate, resulting in a "thermal runaway" that can ignite surrounding materials. The critical temperature of a given drum of Cal Hypo depends in part on the volume of the drum. Contship brought proceedings against PPG in the US District Court, Southern District of New York, claiming damages. Contship conceded awareness (based on published specifications) that Cal Hypo could ignite at temperatures over 55°C; and PPG conceded awareness that the cargo could ignite at lower temperatures. After a bench trial, the district court found that the proximate cause of the fire was Contship's failure to consider the impact of heat on the cargo when it stowed the cargo in a spot that sustained temperatures of at least 47°C. On appeal, Contship argued that the district court erred in dismissing its claims of strict liability and duty to warn.
Held, by the United States Court of Appeals for the Second Circuit, that:
[1] A carrier cannot invoke strict liability if it knows that a cargo poses a danger and requires gingerly handling or stowage, and nevertheless exposes the cargo to the general condition that triggers the known danger, regardless of whether the carrier is aware of the precise characteristics of the cargo.

[2] The liability of the shipper of dangerous goods does not arise where, should warning have been given, that would not have prevented stowage of inflammable cargo near a source of heat.
American Home Assurance Co. v. M/v Tabuk et Al., United States District Court, Southern District of New York, November 5, 2001 (2002 AMC 184)
One container in which one hundred missiles, placed on pallets had been stowed, was loaded on the deck of the m/v Tabuk for carriage from Wilmington to Kuwait. In the course of the voyage the container was lost overboard during a storm. American Home Assurance Co. indemnified the shipper, Raytheon System Company and brought an action against the m/v Tabuk and the carrier, United Arab Shipping Company, claiming US$ 2,560,250.00 in damages, stating that the package limitation was not applicable because the stowage of the container on deck was an unreasonable deviation and in any event the deviation was per se unreasonable, the total number of containers on deck exceeded that contemplated in the stowage manual of the ship and the container was improperly secured.
Held, by the U.S. District Court, Southern District of New York, that:
[1] Loading on deck of hazardous material (missiles) does not constitute an unreasonable deviation


Deck cargo (Art. 1(c))
Belgium
Cour de Cassation 1 December 2000, The “Kintampo” (www.cass.be)
Two containers were carried on deck by the Kintampo without this having been mentioned in the bill of lading. The consignee claimed damages in respect of loss of or damage to the cargo. By judgment of 24 February 1997 the Cour d’Appel of Antwerp held that the failure by the carrier to declare in the bill of lading that the cargo had been loaded on deck prevented him to invoke the limit of liability. The carrier appealed to the Supreme Court.
Held, by the Cour de Cassation, that:
[1] Article 91A paragraph I(c) of book II of the Code of Commerce, corresponding to article 1(c) of the Hague-Visby Rules whereby the provisions of the Convention are not applicable to goods which by the contract are stated as being carried on deck and are so carried requires such declaration only in order to protect the third party holder of the bill of lading and not in order to allow the carrier to benefit of the limit of liability. The decision that the carrier who carries goods on deck without so stating in the bill of lading cannot benefit of the limitation of liability is not in conflict with article 91 of book II of the Code of Commerce which gives effect to the Hague-Visby Rules.
France
Court of Appeal of Orleans 9 April 2004, Ahlron MTE and Lloyd's of London v. Alstom Power Turbomachines and Others (2004 DMF 549).
GEC-Alsthom and GEC-Alsthom Electromécanique instructed a forwarding agent, Someport Walon, to procure the carriage of parts of an electrical plant, including two steam turbines, from Bourget (France) to Kawas (India). Several cases were carried by road to Antwerp and loaded on board the Ethnos under time charter to Maritime Transport Entreprises (subsequently called Alhron MTE) who issued, through its agent Navitainer, a clean bill of lading. During the passage the vessel went through a storm in the Gulf of Gascogne and the content of one of the cases, loaded on deck, was seriously damaged. Alstom Power Turbomachines, to which the rights of GEC-Alsthom and GEC-Alsthom Electromécanique had been assigned, and its insurers commenced proceedings against Ahlron MTE and Someport Walon in the Tribunal de Commerce of Paris in order to obtain the payment of the damages suffered by the cargo.

By judgment of 12 December 1996 the Tribunal de Commerce held that Someport Walon and MTE were jointly liable for the 95% of the loss, the negligence of Alstom having contributed for the remaining 5%.

The Court of Appeal of Paris decided instead that they were liable for 100% of the loss and that they should bear the full amount of such loss owing to the damage having been caused by their "faute inexcusable" (a short description of an act or omission done recklessly an with knowledge that damage would probably occur).

The Cour de Cassation by judgment of 14 May 2002 quashed the decision of the Court of Appeal on the ground that it had not given sufficient reasons in respect of the existence of a "faute inexcusable" and remitted the case to the Court of Appeal of Orléans.


Held, by the Court of Appeal of Orléans, that:
[1] Loading of cargo on deck without the consent of the shipper who has not been given notice thereof at any time entails the application of the Hague-Visby Rules nor is such application excluded by a clause in the bill of lading authorising loading on deck irrespective of notice being given to the shipper, such consent being required by article 1(c) of the Rules.

[2] Although loading on deck without the consent of the shipper only entails a fault of the carrier, such fault is qualified as "inexcusable", as defined by article 4(5)(e) of the Hague-Visby Rules when a storm warning is issued prior to the sailing of the vessel and when the packing of the deck cargo having been damaged by the heavy weather and was exposed to wetting, no serious measures for the preservation of the cargo were adopted by the carrier, who had been given notice thereof as well as of the rust that had started to affect the steel, nor was the cargo stowed under deck, as it had been suggested.
Portugal
Supremo Tribunal de Justiça 31 May 2001, Victor Hugo Garcia Hierro Cardinali v. Vieira & Silveira Transporte Maritimos S.A. and Empresa do Cabresante Lda. – The “Alfama” (unreported)
The owners of the Circ Cardinali instructed an agent in Funchal, Empresa Cabresante, to load on board the m/v Alfama, owned by Vieira & Silveira Transporte Maritimos S.A. various materials of the circ in view of intended performances in Lisbon. All such materials, including a trailer, were loaded on deck. In particular, the trailer had necessarily to be stowed on deck owing to its dimensions. During the passage the weather conditions worsened and on account of a sudden rolling movement of the vessel, the trailer fell overboard.
Held, by the Supremo Tribunal de Justiça, that:
[1] Pursuant to Art. 4(2)(q) of the Hague Rules, which is made applicable to deck cargo by Art. 9(3) of D.L. 352/86 when stowage on deck is made with the consent of the shipper, and of Articles 798 and 799 Civil Code the carrier is not liable for the loss of cargo stowed on deck on account of bad weather if he proves that such loss is due to deficiencies of the cargo that the carrier did not know and could not have known by the exercise of the diligence of an average man.


Delay (Art. 3.2)
France
Cour d’Appel of Aix-en-Provence 11 February 2010, Axa Corporate Solutions and others v. CMA-CGM – The “CMA-CGM Normandie”, [2011] DMF 141.
On 5 March 2001 a container in which steel wire reels intended for the fabrication of tyres was loaded in Genoa on board the CMA-CGM Normandie for carriage to Dalian, in China. On 27 March the vessel grounded in the Malacca straits and was refloated on 22April. The container, that was delivered at destination according to the carrier at the end of June and according to the shipper on 1st August, was rejected by the consignee and was forwarded back to Genoa on 3rd August. The shippers, Michelin, and its insurers, Axa Corporate Solutions and Avero Belgium, brought proceedings in the Tribunal de Commerce of Marseilles against CMA-CGM claiming damages. By judgment of 9 September 2008 the Tribunal de Commerce of Marseilles rejected the claim of the insurances companies for lack of interest. The insurance companies appealed.
Held, by the Cour d’Appel of Aix-en-Provence, that:
[1] Although the Hague-Visby Rules do not regulate expressly the liability of the carrier for delay in delivery of the goods, the carrier has been in breach of his obligation to carry the goods properly and carefully if he delivers the goods to destination (Dalian, China) after five months from the date of their receipt in Genoa.
Due diligence (Art. 3.1)
France
Court of Appeal of Paris 17 October 2007, Someport Walon v. SNC GE Energy Products (2008 DMF 250)
By contract dated 30 July 1999 S.A. Someport Walon agreed with GE Energy to carry materials for the construction of a gas plant in Bangladesh. During the transshipment in the port of Antwerp of a gas turbine from a barge to the m/v Alemania the turbine fell owing to the wire of the vessel’s crane having broken.

GE Energy and its insurers brought proceedings against Someport Walon and others in the Tribunal de Commerce of Paris claiming damages in the amount of US Dollars 3,033,172. By judgment of 30 May 2005 the Tribunal de Commerce found Someport Walon liable for the full amount of the claim on the ground that the carrier could not invoke the limit of liability pursuant to Article 4(5)(e) of the Hague-Visby Rules. Someport Walon appealed to the Cour d’Appel Paris.


Held, by the Cour d’Appel of Paris, that:
[1] The obligation under article 3(1) of the Hague-Visby Rules to exercise due diligence to make the ship seaworthy is a personal obligation of the carrier.
Germany
Federal Supreme Court (Bundesgerichtshof) 26 October 2006 – M/v “Cita”, I ZR 20/041
In the morning of 26 March 1997 the M/v “Cita” stranded off the Scilly Isles and sank. The cause of the stranding was that the first officer, who had been keeping watch on his own, had changed the course of the vessel and then had fallen asleep. The vessel was equipped with a functioning watch alarm the purpose of which was to ensure that the watch keeper does not fall asleep, but it had been switched off as it apparently was the general practice on  board. After the establishment of a limitation fund by the time charterers of the vessel, who were the carrier, the assignees of certain cargo interests brought a claim against the fund for the amount of the loss and argued that the carrier was liable because the vessel had been unseaworthy because the behaviour of the first officer, who was only qualified as second officer, evidenced that he was unable to manage the vessel properly because he had been keeping watch without a second watch keeper, as required by the STCW Convention and without the watch alarm. The Landgericht Hamburg held in favour of the claimants but then its judgment was reversed b y the Court of Appeal. The timecharterers appealed against this latter judgment to the Federal Supreme Court.
Held, by the Federal Supreme Court (Bundesgerichtshof), that:
[1] The vessel was not unseaworthy under §559 HGB (corresponding to art.3.1 of the Hague-Visby Rules)because the manning complied with the Safe Manning Certificate and although the crew was unaware of the requirement of two watch keepers, it could not be assumed that such ignorance was due to any fault in the organisation on the part of the carrier since even if at the time of the occurrence the requirement of the two watch keepers was in force in England (the place of the casualty), it was not in force under the law of the vessel’s flag and it would be too high a standard of duty to demand from the carrier that he research in advance the legal provisions that might apply to the route taken by the vessel in any particular time.*
* The Editor wishes to thank Mr. David Martin-Clark and BBL Rechtsanwälte of Hamburg for having made available information on this judgment.
United States
Steel Coils, Inc. v. M/v “Lake Marion” et Al., United States District Court, Eastern District of Louisiana, November 23, 2001 (2002 AMC 1680)
Western Bulk voyage chartered the Lake Marion to Itochu International or its guaranteed nominee. The parties used a standard GENCON form with a typewritten “rider”. Under Clause 2, the owner warranted that the vessel would be seaworthy and equipped to carry the cargo. Clause 31 of the rider incorporates a number of standard shipping terms into the charter party as if written in extenso. In particular, Clause 31 incorporates the USA Paramount Clause.

Hot-rolled coils, cold-rolled coils, and galvanized coils were loaded into the vessel at the load ports in Riga and Ventspils, Latvia.

The vessel departed from Ventspils on March 7, 1997 and arrived at its first stop, Camden, New Jersey, on March 28, 1997. During the voyage, the vessel encountered rough weather. The vessel’s logs reported that the worst weather that the vessel encountered was wind that reached Beaufort Scale Force of 11-12 for about one hour on March 26. Captain Musial testified that he was aware that he might encounter Force 12 winds in the North Atlantic during the late winter. During the rest of the voyage, the vessel did not encounter winds exceeding Beaufort Scale 10, and most readings were below Beaufort Scale 9. Although Captain Musial filed a Note of Protest at the first port of call, he did not claim any structural damage to the ship as a result of the weather that the vessel had encountered during the voyage

At the first discharge port, Camden, the vessel discharged cold-rolled coils from holds No. 1, 2, 4, and 7. Attending surveyors reported evidence of seawater entry into all of these holds. Another report at Camden criticized the vessel’s condition and noted specific deficiencies in each of the seven hatch covers and hatch cover closing fixtures.



The vessel then travelled to New Orleans, where she discharged hot-rolled coils, cold-rolled coils, and galvanized coils from holds No. 1, 2, 3, 4, 6, and 7. Captain Rasaretnam, the cargo surveyor in attendance, reported that the vessel’s hatch covers were in “apparent non-watertight condition, with signs of leakage and/or water ingress into all holds”. The survey indicated positive silver nitrate reactions on the cargo in the stow of holds 1, 3, 4, 6, and 7, which confirmed that seawater had entered the holds. In New Orleans, the No. 1 hold of the vessel flooded up to 16 inches as a result of a crack in the plating that separated the No. 1 hold from the port wing ballast tank. Rasaretnam observed the flooding and inspected the crack. He believed that the crack was an extension of an old crack over which a doubler plate had been welded.
Held, by the U.S. District Court, Eastern District of Louisiana, that:
[1] The carrier who failed to test the watertight integrity of the hatch covers through which seawater penetrated into the holds and to make the necessary repairs to the covers failed to exercise due diligence to ensure the seaworthiness of the vessel before the commencement of the voyage.
Steel Coils, Inc. v. M/v "Lake Marion", in rem; Lake Marion, Inc. and Bay Ocean Management, Inc., in personam - v. Western Bulk Carriers K/S Oslo - v. Itochu International, Inc. United States Court of Appeals for the Fifth Circuit, May 13, 2003 (2003 AMC 1408)
The vessel interests appealed and Steel Coils and Western Bulk cross-appealed from the judgment of the U.S. District Court.


Duty to load and discharge the cargo (Art. 3 (2))
England
Jindal Iron and Steel Co. Ltd. and Others v. Islamic Solidarity Shipping Company Jordan Ltd. - The "Jordan II", (H.L.) 25 November 2004 [2005] 1 Lloyd's Rep. 57; 2005 AMC 1
By a charterparty on the Stemmor form dated 4 December 1997 the owners chartered the Jordan II to TCI Trans Commodities A.G. for a voyage from Mumbai in India to Barcelona and Motril in Spain. Jindal Iran and Steel Company Limited and Hiansa S.A. were respectively the sellers and purchasers of 435 steel coils. The goods were shipped from Mumbai aboard the vessel as evidenced by two bills of lading on the Congenbill form, both dated 2 January 1998, which were issued on behalf of the shipowners at Mumbai. The bills of lading contained or evidenced contracts of carriage from Mumbai to Motril. The bills of lading named Jindal Iron and Steel Company Limited as the shippers and Hiansa S.A. as consignees and incorporated the voyage charterparty. The Hague-Visby Rules as enacted in Indian legislation were applicable to this shipment. They correspond to the draft Hague Rules as enacted in the United Kingdom by the Carriage of Goods by Sea Act 1924, which in material respects are the same as the Hague-Visby Rules scheduled to the Carriage of Goods by Sea Act 1971.

Clauses 3 and 17 of the charterparty, so far as material, provided:

3. Freight to be paid at the after the rate of US$ … per metric ton F.I.O.S.T. - Lashed/Secured/Dunnaged

17. Shippers/Charters/Receivers to put the cargo on board, trim and discharge cargo free of expense to the vessel.

In February 1998 the cargo was discharged at Motril. The shippers and consignees alleged that the cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed.

Shippers and Receivers commenced proceedings against the Shipowner in the High Court of Justice (Commercial Court) claiming damages. They denied that clauses 3 and 17 transferred the responsibility of the loading, stowing and discharge functions to them and maintained that, if this had been the case, such clauses would have been null and void pursuant to article 3 r. 8 of the Hague Rules.



After their contentions had been rejected by the Commercial Court and the Court of Appeal, Shippers and Consignees appealed to the House of Lords, the only issue before it being whether clauses 3 and 17 were invalidated by article 3 r. 8 of the Hague Rules.
Held, by the House of Lords, that:
[1] The rule, existing under the common law, that the duty to load, stow and discharge the cargo prima facie rested on shipowners, could be transferred by agreement to cargo interests.

[2] Although under the Practice Statement the House of Lords might be persuaded to depart from an earlier decision (G.H. Renton & Co. Ltd. v. Palmyra Trading Corporation of Panama [1956] 2 Lloyd's Rep. 379), where that decision has been demonstrated to work unsatisfactorily in the market place and produce manifestly unjust results, it has not been shown that this is the case for the rule whereby the shipowner may transfer responsibility for loading, stowing and discharge the cargo on the shipper and the consignee.

[3] Devlin J. adopted in Pyrene v. Scindia Navigation [1954] 1 Lloyd's Rep. 321 a principled and reasonable interpretation of article 3 r. 2 of the Hague Rules, and his interpretation was not based on any technical rules of English law, but was founded on a perspective relevant to the interests of maritime nations generally.
France
Cour de Cassation 30 November 2010, Pakistan National Shipping Corp. v. Axa Corporate Solutions and Others – The “Khairpur” (2010 Revue de droit comm., Maritime, Aerien et des transports 275)
A cargo of rice carried from Karachi to Freetown (Sierra Leone) on the Khairpur, owned by Pakistan National Shipping Corp., arrived at destination in damaged conditions and the cargo insurers after settlement of the insurance indemnity, brought an action against the Owners in the Tribunal de Commerce of Paris. The judgment of the Tribunal de Commerce, by which the claim had been rejected, was affirmed by the Cour d’Appel of Paris with judgment of 11 March 2009, inter alia on the ground that the bills of lading incorporated the FIOS clause. The claimants appealed to the Cour de Cassation.
Held, by the Cour de Cassation, that:
[1] The FIOS clause, pursuant to which the goods are loaded, stowed and unloaded at the expense of the consignee, is null and void being in conflict with article 29 of law 18 June 1966.*
* Art. 29 of law 18 June 1966 provides that all clauses relieving the carrier from its liability under article 27 are null and void. Article 27 provides that the carrier is liable for the loss of or damage to the goods from the time of receipt to the time of delivery unless he proves that such loss or damage has been caused by an excepted peril.

Download 1.09 Mb.

Share with your friends:
1   2   3   4   5   6   7   8   9   ...   19



The database is protected by copyright ©ininet.org 2024
send message
    Main page
high court
southern district
relevant provisions
coast guard
east bank
ground that it
sole cause
court ruled
port side
florida coast